By Erwin Chemerinsky on Mar 11, 2026
Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.
The war in Iran shows how far the United States has come from any semblance of enforcing checks and balances as to war powers. President Donald Trump obviously believes that he can do whatever he wants in this regard without needing congressional approval. And he has reason not to worry about the courts holding his actions in Iran unconstitutional, as the judiciary has abdicated any serious role in enforcing the Constitution in times of war. It was not always this way, but rather a development of the last century.
The genius of the Constitution’s design of separation of powers is that it is meant to require the involvement of two branches of the federal government for any major action. Congress and the president are both involved to enact a law while enforcing it requires participation of both the executive branch and the courts. Treaties are negotiated by the president but must be ratified by the Senate. Appointments to the federal bench or the cabinet are made by the president and must be confirmed by the Senate.
Whether to go to war is one of the most profoundly important decisions any nation can make. The Constitution requires two branches of government to be involved: Article I gives Congress the power to declare war and if so, Article II gives the president the power as commander-in-chief to wage it. James Madison wrote: “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced.”
Read full post at
